A reasonable man under siege

Why Democrats are foolish to oppose the Kavanaugh nomination

By Peter Morici -
Wednesday, August 8, 2018

ANALYSIS/OPINION:

Democrats are foolish to oppose Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. By miscasting him as a foe of Roe v. Wade (1973), consumer rights and a healthy environment, they do the truth a disservice and will hurt themselves in November.

Currently, the court may be divided into three groups — Justices Clarence Thomas, Samuel Alito and Neil Gorsuch on the right, Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan on the left, and Chief Justice John Roberts and Anthony Kennedy, who often decide close cases and sometimes reach common ground with Justices Kagan or Breyer.

Democrats can’t get another liberal justice with President Trump in the White House. Although more conservative than Justice Kennedy, Mr. Kavanaugh is more likely to become an occasional swing voter than anyone the Democrats could get if they derail him.

During his service to the campaigns and administration of President Bush, Judge Kavanaugh established a persona as a tough conservative. However, since joining the Court of Appeals of the D.C. Circuit, he has demonstrated a remarkable openness to legal reasoning across the ideological spectrum.

He has ruled against issues liberals hold dear but based on constitutional principles. For example, overruled on appeal, he argued the U.S. Consumer Financial Protection Bureau was unconstitutionally structured, because its director is excessively insulated from accountability to the political branches of government. He argued in a dissenting opinion the Federal Communications Commission (FCC) could not impose net neutrality, because it lacked explicit statutory authority. However, he sided with environmentalists in a greenhouse gas case over regulation of “biogenic” emissions and argued the Anti-Injunction Act denied courts jurisdiction to block penalties assessed by the Affordable Care Act.

He has lavished praise on the scholarship of liberal New York Judge Robert Katzmann, his clerks have been hired by Justices Roberts, Kennedy, Kagan, Breyer and other justices, and as dean of the Harvard Law School, Justice Kagan hired him to teach.

Democrats on the Senate Judiciary Committee are demanding Judge Kavanaugh’s correspondence going back to his work for President Bush, but that could drag the hearings into late October and energize Mr. Trump’s conservative base.

The Democrats are defending some 26 of the 35 Senate seats up in November — including Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, who are particularly vulnerable — making this strategy especially risky.

The questioning of Judge Kavanaugh will reveal a thoughtful legal scholar who those among us with an open mind would be welcome to Sunday dinner. Then the theatrics will turn to abortion — an issue where Democrats and media liberals woefully misread the pulse of the electorate.

A growing and unsalable majority of Americans want abortions to remain legal — but with conditions. That is the direction the court and legislatures have been taking the practical application of the law. And the hearings will reveal that GOP senators are mostly in line or defer to that thinking.

Roe v. Wade established that abortions should be legal until the fetus is viable outside womb — at that time, the end of the second trimester of pregnancy — but since medical technology has moved up the point of viability.

In Planned Parenthood v. Casey (1992), the Supreme Court effectively permitted Congress and the states to regulate abortions if those requirements did not place an undue burden on a woman’s right to abortion. In Gonzales v. Carhart (2007), the Supreme Court upheld some limit on late-term, partial-birth abortions — and those compromises appear to enjoy wide public approval.

The Democrats will focus on Judge Kavanaugh’s dissenting opinion in Garza v. Hargan (2017), where he argued that the government is not required to provide a pregnant teen in immigration custody an abortion on demand but rather that the decision should wait until she is expeditiously transferred to her adult sponsors. He viewed imposing such a requirement before such a momentous life decision did not impose an undue burden.

That does not sound like a guy looking to go against the moral judgment of the preponderance of the nation and throw out Roe v. Wade. And when questioned about Garza v. Hargan, Judge Kavanaugh will look evil only to abortion-rights zealots.

To the rest of us he will look like a reasonable man listening to a nation wrestling with a tough moral issue. And Democratic senators driving the abortion issue will look silly and out of step with voters just as they are going to the polls.

• Peter Morici is an economist and business professor at the University of Maryland, and a national columnist.